Guardianship/Conservatorship àAppointed by court if both parents die w/o will designating who is to be guardian

Duty of preserving property left to the minor and delivering it to the ward at age 18.

Court must approve sale, lease, or mortgage of property

Extensive court supervision 4

Custodianship àPerson who is given property to hold for the benefit of a minor under the State Uniform Transfers to Minors Act.

Property is transferred to a person as custodian for minor

Custodian is required to transfer property to minor at age 21

Custodian has right to manage property & reinvest it

Custodian is NOT under the supervision of the court BUT

Custodian IS subject to standard of care of a prudent person dealing with the property of another

Simple to create – under Uniform Transfer to Minors Act

Trusteeship àEstablished for the benefit of the child

Most flexible of property arrangements

Testator can tailor trust to specific family circumstances

Trust can postpone possession until the donor thinks child is competent to manage the property

Bars to Succession

3 Lines of Casesè

Legal title passes to the slayer and may be retained in spite of the crime

Legal title does NOT pass to slayer b/c of principle that no one should be permitted to benefit by his own wrong

Legal title passes to the slayer BUT equity holds him to be a constructive trustee for the heirs or next of kin of the decedent

Problems è

Is a criminal conviction required ?

Who takes if the slayer is barred from taking ?

Is there a difference b/w intentional & unlawful killings ?

Effect of HomicideèUPC § 2-803(text pg. 137)

(b) must be felonious & intentional

If intestate - estate passes as if the killer DISCLAIMED his share

DisclaimerèUPC § 2-801 (text pg. 140)

An intestate successor CANNOT prevent title from passing to him

Reasoning – must always be someone seised of the land

If testate – the devisee can refuse to accept the devise, thereby preventing title from passing to the devisee.

Reasoning – any gift requires acceptance

Most states have enacted disclaimer legislation that provides that the disclaimant is treated as having predeceased the decedent (avoiding tax consequences & creditors)

Wills: Capacity & Contests

4 Requirementsè “I C E E”

Testamentary Capacity

Testamentary Intent

Intend that it operate at death and NOT at present

Understandable Expression

Court must understand your disposition

Valid Execution

Compliance with formalities of court & law

Mental Capacity

Entire will fails if T found w/o mental capacity

Mental Capacity TESTè 4 Elements Strittmater“N E X T – N O D”

Decedent must have the ability to know à

The nature & extent of the decedent’s property

The person’s who are the natural objects of decedent’s bounty

The disposition that the decedent is making

How these elements relate so as to form an orderly plan for the disposition of decedent’s property

Insane Delusion

Special type of mental incapacity

Only parts of the will fail

Rule in Honigmanè Person persistently believes supposed facts, which have no real existence except in his perverted imagination and against all evidence and probability, and conducts himself, however logically, upon the assumption of their existence… [false conception of reality – T adheres to against all evidence & reason to the contrary]

General Power – Exercisable in favor of the donee, his estate, his creditors, or the creditors of his estate

Special Power – NOT exercisable in favor of the donee…

NO taxes under this power to donee

Fraud – Appointment to person NOT an object is invalid

How powers can be exercised à Can be specified by donor

Deed – Write out who you appoint property to

Very close to ownership – b/c donee may appoint self at any time

NO title until you actually appoint property

Will – Can’t exercise until you die

Cannot execute a valid K to exercise it in your will

Creditor’s Rights àNone until donee appointsproperty

Capture – When donee appoints the property,[in a manner which blends the property w/his own] he has exercised an intent to control it – if the appointment is ineffective, creditors may capture the property - E.g. in donee’s will

So when donee makes appointment ineffective on purpose, the doctrine applies

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